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Victoria can proceed with bag ban, says court

The British Columbia Supreme Court has cleared the way for the City of Victoria to proceed with a ban on plastic checkout bags. A bag ban bylaw takes effect July 1, 2018, but the city has said it won’t enforce it or impose fines until January 1, 2019.

The Canadian Plastic Bag Association had challenged the city’s authority to enact the bylaw. In a June 19, 2018 judgment, the British Columbia Supreme Court threw out all of the association’s arguments.

According to local media reports, the District of Squamish, emboldened by the decision, is preparing to move on its own local ban on plastic bags and straws.

The Victoria bylaw forbids handing out checkout bags without first asking customers if they need one. Bags supplied on request must be of paper or be reusable and must carry a charge of no less than 15 cents for paper bags, and one dollar for reusable bags. Plastic bags and free checkout bags are expressly forbidden.

The Canadian Plastic Bag Association argued that the bylaw was environmental regulation, which requires the approval of the province. The city contended that it was merely business regulation, fully within municipal jurisdiction.

In siding with the city, the court said that the bylaw only regulated the transaction between the merchant and the customer at the point of purchase. Any environmental impact of plastic bag use was the result of actions by the customer or others after the bag was provided. It had nothing to do with the transaction between the merchant and the customer. Therefore, it was business, not environmental, regulation.

The association contended that the impetus for the bylaw was lobbying by an environmental group, Surfrider Foundation, and that the bylaw found support through the municipal legislative process out of concern for the environment. However, the city also presented evidence that municipal council was concerned about the impact of plastic bags on municipal facilities and services.

As to whether the mandatory minimum charge for paper or reusable bags was a fee (permissible under municipal law) or a tax (not permissible), the court agreed that it was a fee, as no money would be remitted to the city.

Victoria says it is working closely with retailers and the community to raise awareness of the new bylaw. It has developed the Retail Toolkit for business owners and will be running a public awareness campaign through the summer 2018.